Bombay High Court
Moizoddin S/O Azizuddin Qauzi And ... vs The State Of Maharashtra And Anr on 15 March, 2017
Bench: S.S. Shinde
5584.2016 Cri.Appln.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.5584 OF 2016
1. Moizoddin s/o. Azizuddin Qauzi
Age: 36 years, Occu. Electrician,
R/o. Near Gir School, Pathan Mohalla,
Pathri, Tq. Pathri, Dist. Parbhani.
2. Tahesin Begum widow/o Azizuddin Qauzi
Age: 66 Years, Occu. Household
R/o. as above.
3. Azimuddin s/o. Azizuddin Qauzi,
Age: 33 Years, Occu. Private Service
R/o. 9-2-418 Langar House
Golconda, Hyderabad, Andhra Pradesh
4. Rameezoddin s/o.Azizuddin Qauzi
Age: 30 years, Occu. Electrician
R/o. Near Gir School, Pathan Mohalla,
Pathri, Tq. Pathri, Dist. Parbhani
5. Shaziya Begum w/o. Muquibuddin Qauzi,
Age: 31 Years, Occu. Household,
R/o. Wangi Road, Magdumpura,
Tq. & Dist. Parbhani.
6. Muquibuddin s/o. Muneebuddin Qauzi
Age: 32 Years, Occu. Rickshaw Driver
R/o. as above.
7. Aliya Fatema w/o. Ahmed Nurul
Ambiya Qauzi
Age: 28 Yrs, Occu. Household
R/o. 9-7-731/13, Shaheen Manzil,
Shahid Tipu Sultan Road,
Near Jamali Masjid, Maltekdi,
Station Road, Itwara
Tq. and Dist. Nanded.
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5584.2016 Cri.Appln.odt
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8. Mohammad Nazeeroddin Raziur
Raheman Farooqui
Age: 50 Years, Occu. Electrician
R/o. Ekta Nagar, Pathri, Tq. Pathri
Dist. Parbhani.
9. Farhat Sultana Mohammad
Nazeeroddin Farooqui
Age: 36 Years, Occu. Household,
R/o. as above.
10. Alimunisa Begum w/o. Abdul
Mannan Farooqui,
Age: 35 Years, Occu. Household,
Aziz Mohalla, Pathri,
Tq. Pathri, Dist. Parbhani.
11. Abdul Mannan Rajiur Raheman Farooqui
Age: 45 Years, Occu. Electrician
R/o. as above.
12. Fayazuddin Raziur Raheman Farooqui
Age: 38 Years, Occu. Electrician
R/o. as above. APPLICANTS
VERSUS
1. The State of Maharashtra
Through Police Inspector
Police Station, Majalgaon City,
Tq. Majalgaon, Dist. Beed.
2. Gohar Afreen w/o. Moizuddin Quazi
Age: 28 Yrs., Ocu. Household,
R/o. Pathan Mohalla, Pathri,
Tq. Pathri, Dist. Parbhani
At present R/o. Meethpada
Naddinnaka, Bhivandi
Dist. Thane. RESPONDENTS
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5584.2016 Cri.Appln.odt
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...
Mr.K.N. Farooqui, Advocate for the applicants
Mr.M.M.Nerlikar, APP for the Respondent/
State
Mr.T.A.Quadri, Advocate holding for
Mr.M.G.Mustafa, Advocate for respondent no.2
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 06.03.2017
Pronounced on : 15.03.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. It is the case of the applicants
that respondent no.2 has filed First
Information Report against the husband,
mother-in-law and brothers of the husband and
the relatives of the husband, thereby making
false and omnibus allegations, without
attributing any specific overt act or date of
the incident. It is submitted that the police
authority, without verifying the genuineness
of the averments in the complaint filed by
respondent no.2, has registered the FIR.
2. It is further submitted that
5584.2016 Cri.Appln.odt
applicant nos.1, 3 and 4 are real brothers
and they are residing separately. Applicant
no.3 is residing in Hyderabad [Andhra
Pradesh] since the year 2010. There is no
joint family as such. Applicant no.1 and his
mother i.e. applicant no.2, and his brother
i.e. applicant no.4 are residing at Pathri,
District Parbhani. Sister of applicant no.1,
namely, Shaziya and brother-in-law
Muquibuddin are residing at Wangi Road,
Magdumpura, Parbhani. Aliya Fatema sister of
applicant no.1 is residing at Nanded.
Applicant nos. 8 and 9 maternal uncle and his
wife are residing at Ekta Nagar, Pathri,
District Parbhani. Applicant nos.10 to 12 are
residing at Aziz Mohalla, Pathri, who are
maternal uncle and aunt of applicant no.1.
The maternal uncle of applicant Abdul Mannan
is suffering from paralysis and he is
bedridden. They have no concerned with the
allegation in the complaint and family of
5584.2016 Cri.Appln.odt
respondent no.2. The learned counsel
appearing for the applicants invites our
attention to the copies of the Aadhar Cards
and Medical Certificates of the applicants.
It is further submitted that
informant i.e. respondent no.2 married, with
applicant no.1 on 22nd October, 2008, and
couple started residing separately at Pathri,
District Parbhani. Out of the said marriage,
informant begotten three daughters.
Respondent no.2 left the house of applicant
no.1 on 20th August, 2013, without giving any
reason. Applicant no.1 has sent notice on
27.11.2013 to the informant, requesting for
cohabitation. However, respondent no.2 did
not turn up. Therefore, again notice was sent
on 9th January, 2014, but there was no
response from respondent no.2. Respondent
no.2 is residing with her parents in Thane
District, since 20th August, 2013. Applicant
no.1 submitted application to the Women Cell
5584.2016 Cri.Appln.odt
at Pathri Police Station. The said office has
sent notice to respondent no.2 for
settlement, however, she did not appear
before the Women Redressal Forum.
3. It is submitted that applicant no.11
is suffering from paralysis and he is advised
to bed rest. Applicant nos.4 to 10 and 12 are
residing separately, they have no concerned
with the family of applicant nos.1 to 4.
However, only with a view to harass the
applicants, the FIR is lodged with ulterior
motive by the informant. The learned counsel
further submits that even if the allegations
in the FIR are read in its entirety, and
taken at its face value, the alleged offences
are not disclosed against the applicants. In
support of his contention that, when there
are omnibus allegations without attributing
specific overt acts to the accused and if the
allegations are inherently improbable and no
prudent person can believe such allegation,
5584.2016 Cri.Appln.odt
the learned counsel appearing for the
applicants placed reliance on the ratio laid
down in the following cases Preeti Gupta and
another Vs. State of Jharkhand and another1,
Chandralekha and others Vs. State of
Rajasthan and another2, Ramesh and others Vs.
State of T.N.3, Rukmini Narvekar Vs.Vijaya
Satardekar & Ors.4, Saleha and Ors. Vs.
State of Maharashtra and Ors.5, Mayur Mozes
Khajekar Vs. The State of Maharashtra6 and
Rahul s/o. Punjaram Nikam Vs. The State of
Maharashtra7 and the judgment of Gujrat High
Court in the case of Devendra @ Tinku &
others Vs. State of U.P. and another in
Application No.3615/2012, decided on 8th
April, 2013. Therefore, the learned counsel
appearing for the applicants submits that,
the application deserves to be allowed.
1 [2010] 7 SCC 667
2 [2013] 14 SCC 374
3 [2005] 3 SCC 507
4 [2008] 14 SCC 1
5 2015 All MR [Cri.] 2531
6 2015 All MR [Cri.] 3176
7 2015 All MR [Cri.] 2710
5584.2016 Cri.Appln.odt
4. On the other hand, the learned APP
appearing for the respondent-State, relying
upon the investigation papers submits that,
the Investigating Officer has recorded the
statements of the witnesses, and prima facie,
it is revealed that the applicants are
involved in the alleged commission of
offence, and therefore, the application may
be rejected.
5. The learned counsel appearing for
respondent no.2, relying upon the averments
in the affidavit-in-reply submits that, it is
true that applicant nos.1, 2 and 4 are real
brothers, but it is specifically denied that
they are residing separately. It is further
denied that applicant no.3 is residing at
Hyderabad since the year 2010. It is
submitted that applicant nos. 1, 2 and 4 are
the members of the joint family and reside
at Pathri, District Parbhani. It is submitted
5584.2016 Cri.Appln.odt
that, till that time respondent no.2 was
driven out from the matrimonial home in the
year 2013, all the accused/applicants were
residing jointly. The marriage of the Aliya
took place prior to 2 ½ years, after
respondent no.2 is driven out from the
matrimonial home. The learned counsel
appearing for respondent no.2 invites our
attention to the allegations in the FIR and
submits that, the alleged offences have been
disclosed, and therefore, this Court may not
consider the prayer for quashing of the FIR.
It is submitted that there was ill-treatment
and harassment on account of displeasure of
the accused that, respondent no.2 gave birth
to three daughters, and also there was demand
of Rs.2 lacs from the parents of respondent
no.2.
6. We have carefully considered the
submissions of the learned counsel appearing
for the applicants, learned APP appearing for
5584.2016 Cri.Appln.odt
respondent-State, and the learned counsel
appearing for respondent no.2. With their
able assistance, we have perused the
pleadings in the Application and grounds
taken therein, annexures thereto, reply filed
by respondent no.2, and also the rejoinder
filed by the applicants. Upon careful perusal
of the investigation papers, it appears that,
applicant no.1 Moizuddin Azizuddin Quazi,
applicant no.2 Tahesin Begum Azizuddin Qauzi,
applicant no.4 Rameezoddin Azizuddin Qauzi,
applicant no.8 Mohammad Nazeeroddin Raziur
Raheman Farooqui, applicant no.9 Farhat
Sultana Mohammad Nazeeroddin Farooqui,
applicant no.10 Alimunisa Begum Abdul Mannan
Farooqui, applicant no.11 Abdul Mannan Rajiur
Raheman Farooqui and applicant no.12
Fayazuddin Raziur Raheman Farooqui are
residing at Pathri, Taluka Pathri, District
Parbhani. Applicant no.3 Azimuddin Azizuddin
Qauzi is residing at Hyderabad. Applicant
5584.2016 Cri.Appln.odt
no.5 Shaziya Begum Muquibuddin Qauzi and
applicant no.6 Muquibuddin Muneebuddin Qauzi
are residing at Parbhani. Applicant no.7
Aliya Fatema Ahmed Nurul Ambiya Qauzi is
residing at Nanded.
7. Therefore, upon perusal of the
investigation papers, it is abundantly clear
that, all the applicants except the applicant
nos.3, 5, 6 and 7 are residing at Pathri,
District Parbhani. We do not wish to enter
into controversy whether the applicants are
residing at Pathri or at other places.
8. Upon perusal of the allegations as
against applicant nos.1, 2, 4, 8, 9 to 12 the
alleged offences have been disclosed, and
therefore, needs further investigation.
Therefore, we are not inclined to entertain
their application for quashing of FIR.
9. As already observed, even
investigation papers show that, applicant
5584.2016 Cri.Appln.odt
no.3 is residing at Hyderabad [Andhra
Pradesh]. Applicant no.5 and applicant no.6
are residing at Magdumpura, Taluka and
District Parbhani. Applicant no.7 is residing
at Nanded. It appears that applicant no.5 is
sister of applicant no.1 and applicant no.6
is her husband. Applicant no.7 is also
married sister of applicant no.1.
10. In that view of the matter, since
applicant nos.3, 5, 6 and 7 are not residing
at Pathri, Taluka Pathri, District Parbhani,
and there are no specific overt acts
attributed to them. We are of the opinion
that further continuation of the proceedings
based upon the FIR bearing Crime No.166/2016
registered at Majalgaon City Police Station,
Tq. Majalgaon, District Beed, for the offence
punishable under Section 498A, 323, 504, 506
r/w.34 of IPC, as against applicant nos.3, 5,
6 and 7 would be abuse of process of law.
5584.2016 Cri.Appln.odt
11. The Supreme Court in the case of
Geeta Mehrotra and another Vs. State of Uttar
Pradesh and another8 in the facts of that
case held that casual reference to a large
number of members of the husband's family
without any allegation of active involvement
would not justify taking cognizance against
them and subjecting them to trial. In the
said judgment, there is also reference of the
judgment of the Supreme Court in the case of
G.V.Rao Vs.L.H.V. Prasad9 wherein in para 12
it is observed thus:
"12. There has been an outburst of
matrimonial disputes in recent
times. Marriage is a sacred
ceremony, the main purpose of which
is to enable the young couple to
settle down in life and live
peacefully. But little matrimonial
skirmishes suddenly erupt which
often assume serious proportions
8 (2012) 10 SCC 741
9 (2000) 3 SCC 693
5584.2016 Cri.Appln.odt
resulting in commission of heinous
crimes in which elders of the family
are also involved with the result
that those who could have counselled
and brought about rapprochement are
rendered helpless on their being
arrayed as accused in the criminal
case. There are many other reasons
which need not be mentioned here for
not encouraging matrimonial
litigation so that the parties may
ponder over their defaults and
terminate their disputes amicably by
mutual agreement instead of fighting
it out in a court of law where it
takes years and years to conclude
and in that process the parties lose
their 'young' days in chasing their
'cases' in different courts."
12. The Supreme Court in the case of
"State of Haryana V/s Bhajan Lal10 held that,
in following categories the Court would be
able to quash the F.I.R.
108. In the backdrop of the
interpretation of the various relevant
10 AIR 1992 SC 604
5584.2016 Cri.Appln.odt
provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the extra-
ordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint,
even if they are taken at their face
value and accepted in their entirety do
not prima facie constitute any offence
or make out a case against the accused.
2. Where the allegations in the First
Information Report and other materials,
if any, accompanying the F.I.R. do not
5584.2016 Cri.Appln.odt
disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of
Section 155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against
the accused.
4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order of
a Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is
sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.
5584.2016 Cri.Appln.odt
7. Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge.
13. The case of applicant nos.3, 5, 6
and 7 is covered in categories 5 and 7 of the
aforesaid categories.
14. In that view of the matter, FIR
bearing Crime No.166/2016 registered at
Majalgaon City Police Station, Tq. Majalgaon,
District Beed, for the offence punishable
under Section 498A, 323, 504, 506 r/w. 34 of
IPC, is quashed and set aside to the extent
of applicant no.3 Azimuddin Azizuddin Qauzi,
applicant no.5 Shaziya Begum Muquibuddin
Qauzi, applicant no.6 Muquibuddin Muneebuddin
Qauzi and applicant no.7 Aliya Fatema w/o.
Ahmed Nurul Ambiya Qauzi.
15. Application to the extent of
5584.2016 Cri.Appln.odt
applicant nos.1, 2, 4, 8 to 12 stands
rejected.
16. Though we have rejected the
application of applicant nos.1, 2, 4, 8 to
12, the same shall not be construed as an
impediment for them, in case they wish to
avail appropriate remedy as available in law
in the event of filing of charge-sheet by the
Investigation Officer.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
